A Cowgirl Rides the Circuits

About a month before oral arguments in a key establishment clause case last year, Anthony R. Picarello Jr. opened the e-mail listing the names of the judges he would be facing on a panel of the 8th U.S. Circuit Court of Appeals. He could scarcely believe his eyes.

Sitting by designation would be none other than retired U.S. Supreme Court Justice Sandra Day O’Connor.

His brief specifically cited O’Connor’s opinions in several crucial Supreme Court precedents, says Picarello, who would argue on behalf of the Wash­ing­ton, D.C.-based Becket Fund for Religious Liberty in favor of a faith-based rehabilitation program for Iowa prisoners.

“A lot of this is right up her alley,” says Picarello, reflect­ing on the February 2007 ar­guments. “A lot of the jurisprudence she developed.”

At the federal courthouse in St. Louis, Picarello faced the bench. “And sure enough,” he recalls, “there she was on the panel. I said, ‘All right!’ ”

Barely 30 seconds into his argument the first ques­tion rang out. It was O’Connor, her voice assured, her clear tone evoking the Arizona range where she grew up.

“Mr. Picarello, let me ask you something right off the bat,” said O’Connor, seeking his opinion on wheth­er the court should review the case de novo.

Picarello hedged. O’Connor kept him in her sights. “Is it something that this panel reviews de novo—yes or no?”

“Yes, your honor,” Picarello replied. “We believe it does.”

Says Picarello, now general counsel for the U.S. Con­ference of Catholic Bishops in D.C., “Candidly, I was a little bit flustered. It was a fairly basic question. I knew the answer, but I was thinking, ‘What is she after?’ ”

Before handing off to Picarello, attorney Gordon E. Allen of Des Moines, Iowa, was himself a mere 12 seconds into his argument for the constitutionality of the prison program—called InnerChange Freedom Initiative—when O’Connor greeted him: “What’s the recidivism rate?”

Allen, representing the state attorney general’s of­fice, replied that the data was not available.

“Well,” O’Connor said, “there probably are recidivism rates in the record from other areas in the country where the program has been in effect.”

Seated at the respondents’ table, Alex J. Luchenitser was taking it all in. Luchenitser, representing the D.C.-based advocacy group Americans United for Separation of Church and State, wasn’t surprised that O’Connor fired the first questions.

“I watched her when she was on the Supreme Court,” recalls Luchenitser, who was making only his second appellate argument. “This wasn’t any different. I noticed that she almost always asked the first question. I was just glad it wasn’t at me.”

Indeed, O’Connor’s direct style, laser-beam focus and prompt questioning are unmistakable to anyone who argued before the Supreme Court during her 24-year tenure.

REVIVING A TRADITION

Since her 2006 retirement, O’Connor also has sat with the 2nd and 9th Circuits. In doing so, she is follow­ing in the tradition of her predecessors who kept busy in their retirements by sitting on federal appellate courts.

Among the most industrious were Byron R. White, Lewis F. Powell Jr., Potter Stewart and Tom C. Clark, who is credited with having sat on all the existing circuits. (Clark retired in 1967 and died in 1977, four years before the 5th Circuit was split to add the 11th Circuit. Clark also sat on the Court of Customs and Patent Appeals, abolished in 1982 to be replaced by the Federal Circuit.)

Other retired justices who have sat on federal appellate courts include William J. Brennan, Thurgood Marshall, Stanley Reed and Harold Burton.

It is not known whether O’Connor intends to tie Clark’s record. A call and e-mail to the U.S. Supreme Court public information officer were not returned.

Nevertheless, two proponents of Supreme Court circuit riding praise O’Connor for reviving the practice. “I think it’s wonderful,” says University of Minnesota law professor David R. Stras, who has written that circuit riding should be required of sitting justices—not just left to retirees.

Indeed, circuit riding was a requirement of all Supreme Court justices until 1911. Congress abolished it after decades of complaints about the hardships of 19th century travel and the bloated post-Civil War docket.

Technology, air travel and modern hotels have mooted the former, while the discretionary cert process begun in 1988 has diminished the latter.

“The lower courts generally get quite a bit of information. They can learn a lot from a Supreme Court justice,” says Stras, who was a clerk for Justice Clarence Thomas.

SCHOOLING THE SUPREMES

The Justices also gain, Stras says, by discovering the effects of their decisions. “There are so many fragmented holdings where you’re not sure what the Supreme Court is saying,” Stras adds. Lower courts have to deal regularly with subjects such as immigration and sentencing, frequently struggling with rules the Supreme Court issues. Plus, the appellate dockets are so overloaded that circuit judges can use all the help they can get.

The value of circuit riding diminishes when a re­tired rather than a sitting justice participates, Stras says. “It’s less relevant the longer a justice is away from the Supreme Court.”

Nevertheless, circuit riding would be particularly instructive for O’Connor, says Stras, because she never sat on a federal appellate court before her Supreme Court nomination. By contrast, every justice on the current court has had circuit experience.

Northwestern University law professor Steven Calabresi also has written in favor of circuit riding among sitting justices, although he would broaden the requirement to include district courts.

He agrees with Stras that “some of the benefits of circuit riding don’t come with retirees” on the appellate courts. But, Calabresi adds, even a retired justice brings an element of instruction and cross-fertilization between the appellate courts and the Supreme Court.

“It’s great for lower court judges to be exposed to a justice even if he or she is retired,” he says.

That was partly what 8th Circuit Chief Judge James B. Loken had in mind when he invited O’Connor. “It was a wonderful experience for the circuit,” says Loken, who clerked for White and joined his former boss on the bench in the 1990s when White sat with the circuit.

Describing the difference between the Supreme Court and circuit courts, Loken referred to a comment by Justice Stephen G. Breyer: Appellate courts prima­rily decide cases, while the high court examines issues. Despite the differences, both White and O’Connor took to the appellate process “like dolphins taking to the ocean.”

Judge M. Margaret McKeown of the San Francisco-based 9th Circuit sat with White in 1999 in a special session in Montana.

“Two things struck me about it,” recalls McKeown, chair of the ABA Standing Committee on Federal Judicial Improvements. “He didn’t ask a lot of questions but he was very engaged in the cases. He was very thoughtful and a lively participant in the conferences.”

“She models and exemplifies how to be a judge,” says Benton, who wrote the decision, which was hand­ed down in December. Americans United for Separation of Church and State v. Prison Fellowship Ministries Inc., 509 F.3d 406. Among other holdings, the opinion affirmed the lower court’s ruling that state funding for the program violated the establishment clause. (Click here to listen to oral arguments.)

Benton declined to talk specifically about the arguments or the deliberations. But he praised O’Connor as someone who “shows how to decide cases based on arguments and briefing. She shows how to be engaged in a case.”

Picarello also identifies a marketing benefit of her appearance. “It certainly raises the profile of the case, and it’s good PR for the legal profession,” he says. Remarking about the filled courtroom, he adds, “It’s a neat opportunity for folks who are nearby to see a Supreme Court justice. It’s like a field trip.”

Luchenitser agrees. “I think it’s wonderful that she is able to do that. She brings all kinds of experience—especially in a case where she wrote most of the [precedential] opinions.

“That kind of expertise improves the process, given that she’s been involved in so many [establishment clause] cases.”

And on a personal level, Picarello says, although he has argued a half-dozen or so appellate cases, “I haven’t argued before the Supreme Court. It’s an honor for me to argue before a justice—and to do it without having to go through the cert process.”

“Now I can always say I did it,” he adds.

Web extra:

Listen to oral arguments in Americans United for Separation of Church and State v. Prison Fellowship Ministries Inc.